Sen. Ted Cruz, R-Texas, suggested Wednesday that Republicans may block any Supreme Court justice nominated by Hillary Clinton’s administration — assuming she captures the White House and Republicans maintain their senate majority.
In a statement, Cruz said, “There will be plenty of time for debate on that issue, there is long historical precedent for a Supreme Court with fewer justices, just recently Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job, that’s a debate that we are going to have.”
In reaction to Cruz’s comments and a similar suggestion made by Sen. John McCain, R-Ariz., Senate Minority Leader Harry Reid, D-Nev., wrote in a mass email sent by the Progressive Change Campaign Committee, “Ted Cruz and John McCain may have given away the Republican game plan on the Supreme Court. And we need to treat it like the constitutional crisis it will be if Democrats don’t take back the Senate majority.”
The notion Sen. Reid is at all interested in defending the Constitution is laughable. This is the same man who rammed through the now-collapsing Affordable Care Act, which for the first time in history forced Americans to purchase a product (health insurance) simply for being alive.
There is nothing in the Constitution that compels Congress to eventually confirm a Supreme Court nominee, as odd as it may seem. Throughout history, there have been multiple vacancies filled after more than a year had passed, the longest being the vacancy left by the death of Justice Henry Baldwin in 1844. Baldwin’s seat wasn’t filled for a whopping 841 days (2.3 years) when it was finally filled by Justice Robert Grier in August 1846. In total, there have been eight Supreme Court vacancies that took more than a year to fill, including the one filled by Justice Harry Blackmun in 1970.
Although there have been many Supreme Court vacancies that took many months to fill, there have been none left vacant for a president’s entire four-year term. Even when Congress and a sitting president are deeply divided, political pressure from the public usually forces a compromise.
A Clinton presidency, however, might be a totally different story.
If Clinton wins, she’ll likely be the most unpopular first-term president to ever take office, at least on day one. Most voters are already convinced she’s untrustworthy, and thanks in large part to WikiLeaks, much of her party is already dissatisfied. In short, the “mandate” many presidents begin their first term with simply won’t exist for Clinton, and Republicans may be able to hold out until Clinton caves and gives them a nominee they can live with.
Although Republicans will almost certainly take significant heat for what will be attacked as a “partisan” decision, the stakes have never been higher. Clinton has promised to grow the federal role in higher education; restrict Second Amendment rights; punish businesses that move overseas; create a health insurance “public option” and expand Obamacare; add more economic regulations; reverse the Supreme Court’s decision in Citizens United, thereby limiting free speech; impose greater restrictions on domestic energy development, especially fracking; and a number of other policies and programs that restrict personal liberty and marketplace freedom.
If the late Justice Antonin Scalia’s seat is filled by the sort of far-left nominee Clinton has pledged to support, and another vacancy (or more) happen during her term, the only hope to save freedom might be an all-out war in the Senate over the Supreme Court.
Of course, none of this will matter if Donald Trump, who remains behind in the clear majority of polls, beats Clinton on Nov. 8.
Justin Haskins is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an executive editor at The Heartland Institute. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
